VA legislators hold the line for stormwater rollout

Climate change commission created, while move for review of fracking’s risks was rejected.

By Leslie Middleton
onMay 06, 2014

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The Virginia General Assembly passed legislation that assures the implementation of stormwater regulations that are key to Virginia’s plans to meet the Chesapeake Bay cleanup goals.

At the beginning of the legislative session, 15 bills were submitted relating to stormwater, many seeking ways to delay or weaken the stormwater management rules passed in previous years and due to take effect on July 1. The rules will regulate discharges of stormwater from construction activities both during and post construction.

One issue was whether Virginia’s local governments that do not have permitted municipal separate storm sewer systems (MS4s) would be required to develop local programs to administer the more stringent stormwater control requirements. Local governments with MS4 systems are mostly larger cities and urban areas with staff and resources to fully manage their stormwater programs.

In the past, many Virginia localities let the state perform local plan reviews, permits and site inspections — and ongoing assurances that post-construction stormwater management practices were maintained. In the wake of the recession, some local government were unable — or were unwilling — to develop local programs by the July 2014 deadline in the legislation, and lawmakers representing these areas sought relief through bills submitted to the General Assembly this season.

Joe Lerch, director of Environmental Policy of the Virginia Municipal League, noted that rural counties were especially concerned that they did not have sufficient development activity to generate the revenue from permit fees needed to support the necessary staff for a local program.

The new rules give local governments not running MS4 programs the option of having their own local program — or letting the state run the program. In addition, several localities in Virginia with new MS4 permits may defer taking ownership of their programs for six months.

Del. David Bulova was pleased that the July 1 implementation date was not delayed. “The big success was that we kept the new stormwater management regulations on the same timetable, which will help us meet the Bay TMDL goals.” Bulova is a professional stormwater expert who represents the urbanized areas of Fairfax that are mostly unaffected by the legislation.

Another issue was whether land disturbance for single-family dwellings would require a full permit and related fees. The legislature decided that a written agreement would be substituted for the more complex — and costly — stormwater management plan previously required. Permit fees for single-family dwellings are significantly reduced, a concession to the homebuilding industry.

“It took a lot of work and discussion,” said Ann Jennings, Virginia director of Chesapeake Bay Foundation, “and basically the leadership of key legislators who encouraged all the different parties — including lawmakers from both houses — to work out a solution.”

Bill Street,executive director of the James River Association, which has been active in promoting stormwater policy through legislation and implementation projects, said that giving smaller localities the choice to have the state administer the stormwater program may make good sense.

“It is probably a better structure,” Street said. “Forcing a local government to develop a program, when it is lacking the resources or the will to assume the responsibility, would have been a recipe for disaster.”

Jack Frye, Virginia director of the Chesapeake Bay Commission, agreed that the main success of the session was that the legislation holds the line to the July 1 implementation date. Frye previously worked for the Virginia Department of Conservation and Recreation, which guided major revisions of Virginia’s stormwater regulations through an arduous stakeholder-driven process that started in 2004 and culminated with the 2011 passage of regulations that were originally due to go in to effect in July 2013.

These regulations required developers to achieve a post-construction discharge of no more than 0.41 pounds per acre of phosphorous (though environmentalists had pressed unsuccessfully for a more stringent 0.28 pounds per acre limit). In addition, Virginia adopted runoff reduction methods that use velocity control standards to reduce pollution and channel erosion.

When the EPA developed the Bay TMDL, or pollution diet, Virginia wrote into its implementation plan a one-year delay (from July 1, 2013, to July 1, 2014) for enactment of the stormwater regulations.

Local governments, including the staff of soil and water conservation districts that commonly provide some level of technical support in stormwater management, remain cautious about how some of the details of the new program will be implemented. The Virginia Department Environmental Quality in 2013 took over the stormwater regulatory programs from DCR in a move to consolidate all regulatory programs under one departmental roof.

Many say the DEQ does not have the staff or expertise to implement the number of local programs that may be required when localities choose to let the DEQ administer them. But, said VML’s Lerch, the new regulations provide necessary flexibility, allowing localities to assume control over their own programs at a later date.

With stormwater legislation commanding the attention of local governments and conservation professionals, Bulova was pleased that legislative deliberations brought home how important stormwater management is to the quality of life in Virginia’s Chesapeake Bay regions.

Environmental advocates, home builders, and local governments for the most part, expressed relief that regulations, which have been in the making for a decade, will move forward. The technical requirements — the runoff reduction requirements and phosphorous standards — remain intact, and it is hoped that a more workable system for local governments will result in better oversight and compliance with the rules.

Governments adopting local programs have until May 15 to pass the requisite ordinances and document their plans to the DEQ. Local governments electing to have the state administer their programs were required to notify the department by April 30.

In other action, the Virginia legislature created an 11-member commission on “recurrent flooding,” the euphemism used by the McDonnell administration to describe the effects of climate change without having to acknowledge its reality or causes. The commission is to formulate recommendations to address the effects of climate change in Virginia that will be submitted to the 2016 general assembly.

The new commission will be in addition to Gov. Terry McAuliffe resurrecting the 2008 Governor’s Commission on Climate Change, which has not met since completing its report in 2009. McAuliffe told attendees at the recent Virginia Environmental Symposium that climate change is “not a question of if, but a question of when,” and that he intends to ensure that Virginia gets out in front of the issue.

Virginia legislators also kept the 20 percent reduction of the menhaden catch put in place to align Virginia with the actions of the Atlantic States Marine Fisheries Commission that regulates coastal fisheries.

The legislators also defined aquaculture (the farming of aquatic organisms) as a form of agriculture —and added farming activities to the list of activities that cannot be regulated through special use permits by localities. The legislation effectively overrides a decision by the Virginia Supreme Court that the York County Seafood Oyster Company, operating in what neighbors claimed is a non-commercial setting, needs a special use permit from the county.

The House of Delegates rejected a Virginia Senate bill that would have required a multi-agency, comprehensive review of the environmental and economic risks and benefits of drilling in Virginia’s coastal plains. As it stands, the Department of Mines, Minerals and Energy is required to complete a similar review only when the department finds that potential drilling is imminent in the region. Supporters of the bill wanted stronger provisions to ensure the health of Tidewater residents and their drinking water should fracking begin in the Taylorsville shale oil gas formation that underlies five counties on the Northern Neck and Middle Peninsula.

Initiatives to increase funding for land conservation and agricultural best management practices, and to identify a secure funding stream for stormwater implementation and other water quality measures awaited final budget approval.